Pearce v. LaBella

United States District Court, N.D. New York

September 20, 2013

GINA M. PEARCE, as Guardian of distributees of Kristin Mary Palumbo Longo (deceased) and Administratrix of the Estate of Kristin Mary Palumbo Longo (deceased); STEVEN L. PEARCE, as Guardian of distributees of Kristin Mary Palumbo Longo (deceased); and JOSEPH LONGO, as a distributee of Kristin Mary Palumbo Longo (deceased), Plaintiffs,v.DANIEL LABELLA, Ind. and as a member of the City of Utica Police Department, and as Commissioner of Public Safety; the CITY OF UTICA; and the CITY OF UTICA POLICE DEPARTMENT, Defendants

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[Copyrighted Material Omitted]

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For Plaintiffs: JOHN W. DILLON, ESQ., OF COUNSEL, OFFICE OF JOHN W. DILLON, New Hartford, NY.

In their original complaint, plaintiffs asserted six federal causes of action pursuant to 42 U.S.C. § 1983 as well as a pendent state law negligence claim.[3] In a March 1, 2011, Memorandum--Decision and Order, defendants' motion to dismiss was granted in part and denied in part, and plaintiffs were granted leave to file an amended complaint. Pearce, 766 F.Supp.2d at 380. The only remaining causes of action are the federal substantive due process claim and the pendent state negligence claim. Both claims are asserted against both defendants.

The parties have completed extensive discovery, and defendants now seek summary judgment pursuant to Federal Rule of Civil Procedure 56. They also seek to strike the report and testimony of plaintiffs' expert, Dr. Jon M. Shane (" Dr. Shane" ). These motions have been fully briefed. Oral argument was heard on August 27, 2013, in Utica, New York. Decision was reserved.

II. FACTUAL BACKGROUND

Unless otherwise noted, the following facts are undisputed. During the relevant time period Chief LaBella served as Chief of the UPD, and Mark Williams served as a deputy chief (" Deputy Chief Williams" ).[4] Longo was employed as an investigator for the UPD. As explained by Deputy Chief Williams during his deposition, Longo's chain of command in 2009 began with Sergeant Peter Scalise (" Sgt. Scalise" ), who reported to Lieutenant Michael Zdanowicz (" Lt. Zdanowicz" ), who reported to Captain James Watson (" Capt. Watson" ), who reported to Deputy Chief Williams, who reported to Chief LaBella. Chief LaBella

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and Longo were friends and had worked closely together on the UPD in the past.

Kristin and Longo were married in the early 1990s and had four children together. Their marriage was fraught with discord, and Longo subjected Kristin and the children to verbal and, at times, physical abuse. The marital problems intensified in May and June 2009 when Longo began an extramarital affair with Katheryn Zalewski, a UPD officer (" Kate" ). Longo moved out of the marital home--which was located just outside the city of Utica in the adjoining Town of Deerfield, New York--and moved into his father's house, also in Deerfield. In July 2009 Kristin retained a local attorney, George Massoud (" Massoud" ), for the purpose of initiating divorce proceedings against Longo.

According to Massoud and Kristin's sister, plaintiff Gina Pearce, Kristin contacted one of Longo's supervisors at the UPD on or about July 19, 2009, to report an incident of domestic violence wherein Longo became enraged and pushed Kristin and/or their eight-year-old son to the ground. Kristin reportedly told Massoud and her sister that the supervisor discouraged her from seeking an order of protection because such could impact his employment and, in turn, the family's finances. Kristin's father, Joseph Palumbo, recounted the same event and identified Deputy Chief Michael Bailey (" Deputy Chief Bailey" ) as the supervisor who discouraged her from seeking an order of protection.

On July 22 the UPD received an anonymous written complaint against Longo. The complaint, dated June 1, 2009, and signed by a " Concerned employee," alleged that Longo handled his loaded service weapon in an unsafe manner on three separate occasions while working as a part-time security guard at Proctor High School in the City.[5] At the direction of Deputy Chief Williams, Lieutenant David Mickle (" Lt. Mickle" ) of the UPD's Professional Standards Unit[6] initiated a month-long internal investigation into the school incidents on July 23. Numerous witnesses were interviewed, including Longo and Kate. Longo initially denied the allegations.

On July 28 Shannon Tibbitts, an employee at the high school, advised Lt. Mickle that during the past school year Longo had approached her from behind and placed his gun against her ribs. While Tibbitts initially claimed Longo was only joking, during a subsequent interview she told Lt. Mickle that when he jabbed her with his gun, " It fucking hurt my side, I cried." Festine Aff., Ex. 10, 9, ECF No. 57-11 (" Internal Report" ).[7] On July 30 Shibe Coulett, another school employee, told Lt. Mickle that in January or February of 2009 Longo jokingly removed his gun from his holster and pointed it at Coulett's chest after Coulett asked if Longo had a new gun.

On August 3 Longo approached Capt. Watson and Lt. Zdanowicz in the police station. Longo claimed that he had spoken with Chief LaBella about the ongoing internal school investigation. According to Capt. Watson, Longo stated that " Danny" --referring to Chief LaBella--assured him that " he would be all set as far as this investigation was concerned." Id. at 22.

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Likewise, Lt. Zdanowicz reported: " Inv. Longo stated that he spoke with Danny (Chief LaBella) and he was told that this was taken care of, and was a done deal." Id. at 28. Chief LaBella denies making such statements to Longo. Lt. Mickle briefed Deputy Chief Williams and Chief LaBella on the status of the school investigation on August 11. Chief LaBella issued a memorandum on August 13 suspending Longo from working as a security guard at the high school pending the result of the school investigation.

On August 14 Kristin twice called Longo's immediate supervisor, Sgt. Scalise, to report concerns regarding Longo's behavior in the wake of his suspension. She advised that he had been crying and pacing in the front yard of the marital home the previous evening. She also reported that in the past two weeks Longo had sent her text messages threatening to harm her and himself. She voiced her fear for herself and the children, and claimed Longo was suicidal and had recently threatened to " go postal" on the family while brandishing his gun. Sgt. Scalise advised Kristin that he took her concerns seriously and promised to address them. He then communicated this information to Capt. Watson, who, in turn, contacted Deputy Chief Bailey and Chief LaBella.[8]

Deputy Chief Bailey and Chief LaBella each reportedly contacted Longo by phone on August 14 to discuss Kristin's concerns. According to Deputy Chief Bailey and Chief LaBella, Longo advised that he was on a boat in the Saint Lawrence River with Kate, denied any suicidal ideation at the time, and claimed that he had begun meeting with a counselor. On August 17 Deputy Chief Bailey met with Longo at the start of his shift to again discuss Kristin's recent contact with Sgt. Scalise. According to plaintiff Gina Pearce, Kristin advised that Longo appeared at the marital home after this meeting, brandished his gun in a threatening manner, and claimed that the UPD's investigation into his recent behavior was closed. Phone records indicate that Kristin attempted to contact Sgt. Scalise several times on the evening of August 17 and had at least one conversation with him that lasted thirteen minutes. Sgt. Scalise does not recall what was discussed during this conversation.

Also on August 17, Kristin's father, Joseph Palumbo, contacted Capt. Watson to voice his concerns regarding Longo's recent threatening behavior and to suggest Longo needed mental health counseling. Capt. Watson gave his cell phone number to Mr. Palumbo and encouraged him to have Kristin contact him directly if she so desired. Kristin called Capt. Watson the following morning to discuss Longo's recent behavior. She described the August 13 incident, during which Longo had been to the marital home and was crying in the front yard. Kristin told Capt. Watson that when she asked what he was doing, Longo replied: " trying to get the balls to end it" because he had " nothing to live for." Dillon Aff., Ex. C, ECF No. 58-3, 3 (" Watson/Scalise Notes" ).

On August 18 Lt. Mickle continued his school investigation by interviewing Steve Scholl, who worked as a part-time security guard with Longo at Proctor High School. Scholl described a June 2009 incident in which he and Longo were in the security office at the high school discussing how cell phone records and text messages can be recovered online. Scholl knew of Longo's relationship with Kate and asked:

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" What if your wife finds out?" Internal Report 11. In response, Longo removed his gun from the holster and, jokingly, put the gun to his mouth.

During a follow-up interview by Lt. Mickle the next day, August 19, Longo admitted to being dishonest during his first interview and attributed this to stress related to his marital problems and financial matters. He then admitted to the incident described above by Steve Scholl. He also admitted that the incident involving Shannon Tibbitts occurred as she described. Although he denied intentionally pointing his weapon at Coulett's chest, he acknowledged that he had mishandled the gun and inadvertently pointed it toward him. On that same day, Lt. Mickle briefed Deputy Chiefs Williams and Bailey about the school investigation.

On August 27 Lt. Mickle completed his school investigation and provided a report to Chief LaBella. The report concluded that Longo's conduct was inappropriate and in violation of numerous UPD policies. It was further noted that Longo and Kate were not truthful and cooperative with the investigation. As a result, Capt. Watson recommended specific disciplinary actions against Longo, which were still being considered at the time of the murder--suicide a month later.

Also during August 2009, Lt. Zdanowicz learned that Longo often drove a UPD vehicle to the marital home while on duty. According to defendants, Longo was admonished for this conduct and prohibited from taking a UPD vehicle out of the City while on duty. Longo violated this directive and, according to defendants, was placed on desk duty and advised not to leave the police station while on duty. Defendants maintain that he remained on desk duty until the day of the murder--suicide.

Longo met with a counselor, Patty Scalise, LCSW (" Ms. Scalise" ), for the first and only time on September 12, 2009.[9] On the evening of September 14, Kristin contacted Capt. Watson on his cell phone and reported that, while on duty that evening, Longo had been at the marital home and threatened to kill himself. Specifically, plaintiffs allege that Longo put the barrel of his service weapon in his mouth and threatened to shoot himself in front of Kristin and their eight-year-old son.[10] Capt. Watson was out of town that evening but claims that he immediately alerted Lt. Zdanowicz, Sgt. Scalise, and Deputy Chief Williams. Lt. Zdanowicz reportedly called Longo into his office to discuss these concerns. Longo denied the allegations, denied being suicidal, and requested the rest of the evening off. Lt. Zdanowicz granted this request, but required him to leave his service weapon in his locker at the police station. Later that night Lt. Zdanowicz drove to Longo's father's residence to secure his off-duty handgun as well.

Within the next few days, Longo appeared at the office of Deputy Chief Williams. He began " yelling and screaming" about his guns being confiscated, and angrily accused Deputy Chief Williams of being " out to get him." Festine Aff., Ex. 5, 19, ECF No. 57-6 (" Williams Dep." ). Longo apologized for the outburst the next day, at which time Deputy Chief Williams recommended counseling. Longo advised that he was already engaged in counseling with Ms. Scalise and was scheduled to

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meet with her next on September 28. Longo's personal firearm was secured in Sgt. Scalise's locker in the ...

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